The Function of Ul alFiqh

Zubair Abbasi Week 2, Thursday 23 January 2014

What is Theory?
A theory is a way of making sense of a complex reality. A generalization about a phenomenon that explains how or why the phenomenon occurs. Systematic, abstract explanation of some aspect of reality.

Theory without practice is sterile and practice without theory is blind

"Theory without data is empty, data without theory is blind. Kant

 'The teaching of the Quran that life is a process of progressive creation necessitates that each generation, guided but unhampered by the work of its predecessors, should be permitted to solve its own problems.' Iqbal, M, The Reconstruction of Religious Thought, OUP 1934 According to the Quran, besides religious experience, there are two additional sources of knowledge: natural phenomenon and history. Ibid

 The life of the law has not been logic: it has been experience. Justice Oliver Wendell Holmes
"No one will ever have a truly philosophic mastery over the law who does not habitually consider the forces outside of it which have made it what it is." Ibid

Law has a spurious appearance of autonomy thanks to its notorious conservatism. It is conservative because a law is an observed regularity: if the regularity disappears there is no law, whence the fact that legal change has everywhere tended to take place in disguise. Patricia Crone

Jackson, SA, Fiction and Formalism Thesis: main argument

Demands of practicality v theoretical consistency
Ul al-Fiqh as the sole determinant of Islamic law is a fiction. Rather it provides parameters for interpretation.

Traditional description of Ul al-Fiqh

Theoretical and philosophical foundation of Islamic law. The methodology for drawing the law from revelation. Minimal human agency in this process. Jurists as husbandmen or midwives.

Critique of the function of theory

Critical Legal Studies claim that it is fictitious to claim that language dictates the meaning. (Weber v Marx) New Legal Formalism describes the function of legal theory as the imposition of constraints on the creation of meaning, though these meanings might be the product of the biases, interests and the imaginative prowess of the individual jurist.

Application of CLS and NLF on Ul al-Fiqh

Shafi as a formalist or anti-formalist? Fiction of theory producing the doctrine. Application of CLS and NLF on Imm al-aramayn alJuwayns view that non-Muslims cannot serve as executive viziers (wazr tanfdh)
Combination of suppression and amplification Creating meaning from the term wal Creating the impression that the term mushrikn includes Jews and Christians. Practical reality leading to choose one amongst multiple theoretical justifications. o Application of the same theory may yield entirely opposite results, depending upon how the theory is applied. Hence the fact that there exists no exclusive ul for different schools. o o o o

Conclusion
Debunking of two fictions: 1. language dictates the meaning independently; 2. legal theory is the only source of legal rules. Vital role of human agency in drawing legal rules from divine sources.